Appellate Case: 19-8054 Document: 010110807970 Date Filed: 02/03/2023 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS February 3, 2023
Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-8054
SHAKEEL KAHN,
Defendant - Appellant. _________________________________
Appeal from the United States District Court for the District of Wyoming (D.C. No. 2:17-CR-00029-ABJ-1) _________________________________
Submitted on the briefs:*
Beau B. Brindley and Blair T. Westover, Chicago, Illinois, for Appellant.
Nicholas Vassallo, Acting United States Attorney, Stephanie I. Sprecher, Assistant United States Attorney, and David A. Kubichek, Assistant United States Attorney, Office of the United States Attorney for the District of Wyoming, Casper, Wyoming, for Appellee. _________________________________
Before MATHESON, BRISCOE, and CARSON, Circuit Judges. _________________________________
BRISCOE, Circuit Judge.
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Appellate Case: 19-8054 Document: 010110807970 Date Filed: 02/03/2023 Page: 2
_________________________________
This case comes before the court on remand from the United States Supreme
Court. Doctor Shakeel Kahn (Dr. Kahn) was convicted in the United States District Court
for the District of Wyoming, in part, for dispensing controlled substances not “as
authorized,” in violation of the Controlled Substances Act (the CSA), 21 U.S.C. § 841(a).
Included in his appeal to this court was his contention that the jury instructions issued by
the district court improperly advised the jury regarding the mens rea requirement of
§ 841(a). We affirmed Dr. Kahn’s convictions, rejecting not only his challenge to the
instructions given, but also his challenges to multiple searches and the evidence seized. In
upholding the instructions, we relied on our prior precedent, United States v. Nelson,
383 F.3d 1227 (10th Cir. 2004), and further reaffirmed its holding, which was guided by
21 C.F.R. § 1306.04(a).
Dr. Kahn appealed to the Supreme Court, raising only his instructional challenge.
The Supreme Court held that § 841(a)’s “knowingly or intentionally” mens rea applies to
the “except as authorized” clause of the statute, vacated our judgment, and remanded the
case for further proceedings consistent with its opinion. Ruan v. United States, 142 S. Ct.
2370 (2022).1 The parties have submitted supplemental briefing, and the matter is now
ripe for decision.
1 The Supreme Court consolidated Dr. Kahn’s appeal with that of Xiulu Ruan. Ruan, 142 S. Ct. at 2375 (“In each of these two consolidated cases, a doctor was convicted under § 841 for dispensing controlled substances not ‘as authorized.’”). 2 Appellate Case: 19-8054 Document: 010110807970 Date Filed: 02/03/2023 Page: 3
Exercising jurisdiction under 28 U.S.C. § 1291, we conclude that the jury
instructions issued in Dr. Kahn’s trial incorrectly stated the mens rea requirement of
§ 841(a) and, further, that such error was not harmless beyond a reasonable doubt. This
prejudicial error infected all of Dr. Kahn’s convictions. Therefore, we VACATE Dr.
Kahn’s convictions on all counts and REMAND for new trial.
I. FACTS
A. Background
In 2008, Dr. Kahn, a medical doctor, opened a practice in Fort Mohave, Arizona.
Later that year, his brother Nabeel, who is not a medical doctor, arrived in Arizona and
began assisting Dr. Kahn in managing his practice. Thereafter, Dr. Kahn’s practice
shifted towards pain management. Beginning in late 2012, pharmacies in the Fort
Mohave area began refusing to fill prescriptions issued by Dr. Kahn. In 2015, Dr. Kahn
opened a second practice in Casper, Wyoming. During that time, Dr. Kahn continued to
travel to Arizona to see patients; other patients travelled to Wyoming to see Dr. Kahn. Dr.
Kahn’s wife, Lyn, began acting as office manager for Dr. Kahn’s Wyoming practice.
By 2016, the government was investigating Dr. Kahn’s prescribing practices.
After law enforcement executed a search warrant on Dr. Kahn’s Arizona residence, the
government indicted him on the following charges:
Conspiracy to Dispense and Distribute Oxycodone, Alprazolam, Hydromorphone, and Carisoprodol Resulting in Death, in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(C), and (b)(2) (Count One); Possession of Firearms in Furtherance of a Federal Drug Trafficking Crime, in violation of 18 U.S.C. § 924(c)(1) (Count Two);
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Dispensing of Oxycodone, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (Counts Four, Six, Seven, Sixteen, and Twenty); Possession with Intent to Distribute Oxycodone and Aid and Abet, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2 (Counts Five, Nine, and Ten); Unlawful Use of a Communication Facility, in violation of 21 U.S.C. § 843(b) (Counts Eight, Twelve, Thirteen, Seventeen, and Eighteen); Dispensing of Oxycodone and Aid and Abet, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2 (Counts Eleven, Fourteen, and Nineteen); Continuing Criminal Enterprise, in violation of 21 U.S.C. § 848(a), (b) and (c) (Count Twenty One); Engaging in Monetary Transactions Derived from Specified Unlawful Activity, in violation of 18 U.S.C. § 1957 (Counts Twenty Two and Twenty Three);
Aplt. App., Vol. I at 45.
B. Trial and Jury Instructions
Lyn pleaded guilty to the conspiracy charge against her. Dr. Kahn and Nabeel,
however, moved to suppress evidence seized in the searches of Dr. Kahn’s homes and
businesses. The district court denied the motion (except that it suppressed the seizure of
any automobiles), and the case proceeded to trial.
After the close of evidence, the district court gave the following instructions to the
jury pertaining to the 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) charges in Counts Four, Six,
Seven, Eleven, Fourteen, Sixteen, Nineteen, and Twenty:
JURY INSTRUCTION NO. 36 . . . [The government] charge[s] various instances of knowingly and unlawfully dispensing and/or distributing Oxycodone while acting and intending to act outside the usual course of professional practice and without a legitimate medical purpose, in violation of 21 U.S.C. Section 841(a)(1) . . . . In pertinent part, Section 841(a) states it is “unlawful for any person knowingly 4 Appellate Case: 19-8054 Document: 010110807970 Date Filed: 02/03/2023 Page: 5
or intentionally to . . . distribute or dispense . . . a controlled substance,” unless a specific exception authorizes it.
JURY INSTRUCTION NO. 37 . . . . To prove Defendant Shakeel Kahn is guilty of one or more of these Counts, the Government must prove beyond a reasonable doubt each of the following elements: . . . (3) Defendant Shakeel Kahn knowingly or intentionally distributed or dispensed the controlled substance outside the usual course of professional medical practice or without a legitimate medical purpose.
JURY INSTRUCTION NO. 39 . . . The good faith of Defendant Shakeel A. Kahn is a complete defense to the charges in Count One (conspiracy to commit a federal drug crime) as well as the charges in Counts Four, Six, Seven, Eleven, Fourteen, Sixteen, Nineteen, and Twenty (knowingly and unlawfully dispensing and/or distributing Oxycodone outside the usual course of professional practice and without a legitimate medical purpose), because good faith on the part of Defendant Shakeel Kahn would be inconsistent with knowingly and intentionally distributing and/or dispensing controlled substances outside the usual course of professional practice and without a legitimate medical purpose, which is an essential part of the charges. “Good faith” connotes an attempt to act in accordance with what a reasonable physician should believe to be proper medical practice . . . . The good faith defense requires the jury to determine whether Defendant Shakeel Kahn acted in an honest effort to prescribe for patients’ medical conditions in accordance with generally recognized and accepted standards of practice.
Aplt. App., Vol. I at 236–37, 239.2
Dr. Kahn and Nabeel objected to the district court’s jury instructions regarding
their potential criminal liability under § 841(a)(1), their respective “good faith” defenses,
2 We discuss the jury instructions regarding the remaining counts in Section II.D, infra. 5 Appellate Case: 19-8054 Document: 010110807970 Date Filed: 02/03/2023 Page: 6
and the intent requirement under the CSA. The district court overruled these objections.
The jury returned a verdict of guilty on all counts, except that it acquitted Nabeel of
causing the death of one of Dr. Kahn’s patients.
C. Appeals
Dr. Kahn and Nabeel appealed their convictions on multiple grounds, including
the jury instructions, and this court affirmed the convictions. See United States v. Kahn,
989 F.3d 806 (10th Cir.), cert. granted sub nom. Kahn v. United States, and vacated and
remanded sub nom. Ruan, 142 S. Ct. 2370. Dr. Kahn then appealed to the Supreme
Court, challenging the jury instructions as they relate to his CSA convictions.
Specifically, Dr. Kahn argued that the jury instructions did not properly instruct the jury
regarding the mens rea requirements of the CSA for distributing controlled substances not
“as authorized.” See 21 U.S.C. § 841(a).
The Supreme Court determined that this court applied an incorrect scienter
standard, and it vacated our earlier judgment. Ruan, 142 S. Ct. at 2382. The Supreme
Court instructed us to address on remand whether the jury instructions that were given at
Dr. Kahn’s trial complied with the mens rea standard set forth in Ruan, as well as
whether any instructional error was harmless. Id.
II. DISCUSSION
In order to determine whether the instructions provided to the jury during Dr.
Kahn’s trial complied with the mens rea standard set forth in Ruan, as well as whether
any instructional error was harmless beyond a reasonable doubt, we first discuss the CSA
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and the Ruan decision. Then, applying the scienter requirement discussed in Ruan to the
jury instructions at issue, we conclude that (1) the district court did not properly instruct
the jury as to the mens rea that the government was required to prove beyond a
reasonable doubt to convict Dr. Kahn, and (2) such error was not harmless.
A. The CSA and Ruan
Dr. Kahn was convicted by a jury for violating the following provision of the
CSA:
(a) Unlawful acts
Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally—
(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or
(2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.
21 U.S.C. § 841(a) (emphasis added). A federal regulation provides that, to be
“authorized,” “[a] prescription for a controlled substance . . . must be issued for a
legitimate medical purpose by an individual practitioner acting in the usual course of his
professional practice.” 21 C.F.R. § 1306.04.
In Ruan, the issue before the Supreme Court “concern[ed] the state of mind that
the Government must prove to convict [a defendant] of violating [§ 841(a)].” Ruan, 142
S. Ct. at 2375. In resolving this issue, the Supreme Court “h[e]ld that [§ 841(a)]’s
‘knowingly or intentionally’ mens rea applies to authorization.” Id. Thus, “once a
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defendant meets the burden of producing evidence that his or her conduct was
‘authorized,’ the Government must prove beyond a reasonable doubt that the defendant
knowingly or intentionally acted in an unauthorized manner.” Id. at 2376.
The Supreme Court rejected the government’s argument that, “once a defendant
meets his or her burden of production, the Government can convict by proving beyond a
reasonable doubt that [the defendant] did not even make an objectively reasonable
attempt to ascertain and act within the bounds of professional medicine.” Id. at 2381
(internal quotation marks and citation omitted). The Court emphasized that § 841(a) does
not contain a “good faith,” “objective,” “reasonable,” or “honest effort” standard, and
courts cannot read such a standard into the statute. Id. The government must prove that a
“defendant knew or intended that his or her conduct was unauthorized”—it cannot rely
on comparison to the good faith efforts or mental state of “a hypothetical ‘reasonable’
doctor.” Id. at 2381–82.
Further, the Supreme Court ruled that, to establish mens rea, it is insufficient for
the government to prove that a defendant acted without “a legitimate medical purpose” or
outside the “usual course” of generally recognized “professional practice.” Ruan, 142 S.
Ct. at 2382; see 21 C.F.R. § 1306.04. Proof that a defendant did so is “circumstantial
evidence” that may be used to prove knowledge of a lack of authorization. Ruan, 142 S.
Ct. at 2382. Certainly, “the more unreasonable a defendant’s asserted beliefs or
misunderstandings are, especially as measured against objective criteria, the more likely
the jury . . . will find that the Government has carried its burden of proving knowledge.”
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Id. (internal quotation marks and citation omitted). But, in order to convict a defendant,
the government must prove that the defendant “knew or intended that his or her conduct
was unauthorized.” Id.; see also United States v. Fabode, No. 21-1491, 2022 WL
16825408, at *6 (6th Cir. Nov. 8, 2022) (“The Supreme Court reiterated, however, that
circumstantial evidence and objective criteria such as ‘legitimate medical purpose’ and
‘usual course’ of ‘professional practice’ are often probative indicia of a defendant’s
subjective knowledge and intent.” (internal quotation marks and citation omitted)).
To illustrate its holding, the Supreme Court discussed Liparota v. United States,
471 U.S. 419 (1985), which concerned the mens rea required to convict a person for the
unauthorized use of food stamps:
Analogous precedent reinforces our conclusion. In Liparota, we interpreted a statute penalizing anyone who “‘knowingly uses [food stamps] in any manner not authorized by’” statute. We held that “knowingly” modified both the “use” of food stamps element and the element that the use be “not authorized.” We applied “knowingly” to the authorization language even though Congress had not “explicitly and unambiguously” indicated that it should so apply. But if knowingly did not modify the fact of nonauthorization, we explained, the statute “would . . . criminalize a broad range of apparently innocent conduct.”
Ruan, 142 S. Ct. at 2378 (internal citations omitted). Just as in Liparota, to convict under
§ 841(a) of the CSA, “the Government may prove by reference to facts and
circumstances surrounding the case that petitioner knew that his conduct was
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unauthorized or illegal.” Liparota, 471 U.S. at 434.3 However, the government’s showing
of objective criteria, without proving that a defendant actually intended or knew that he
or she was acting in an unauthorized way, is not enough to convict. Id.
B. The District Court Incorrectly Instructed the Jury as to Mens Rea
We conclude that the jury instructions issued in Dr. Kahn’s case are inconsistent
with the mens rea standard articulated in Ruan, as they do not require the government to
prove beyond a reasonable doubt that Dr. Kahn knowingly or intentionally acted in an
unauthorized manner.
1. Standard
“We review de novo whether jury instructions, as a whole, correctly state the law
and provide the jury with an understanding of the issues.” United States v. Little, 829
F.3d 1177, 1181 (10th Cir. 2016) (citation omitted). “We will disturb a judgment only if
we have ‘substantial doubt that the jury was fairly guided.’” Id. (quoting United States v.
Smith, 13 F.3d 1421, 1424 (10th Cir. 1994)).
3 While the defendant in Liparota knew that he was purchasing food stamps below the market rate, 471 U.S. at 421–22, such knowledge was not enough to establish guilt, id. at 429–30. The Supreme Court held that knowingly engaging in conduct that is, in fact, unauthorized is not sufficient, even if one is aware of all the factors that render it unauthorized. Instead, the government was required to prove that the defendant actually knew that his conduct was unauthorized under the law. Importantly, however, the Supreme Court concluded that “the Government need not show that [a defendant] had knowledge of specific regulations governing food stamp acquisition or possession.” Id. at 434. 10 Appellate Case: 19-8054 Document: 010110807970 Date Filed: 02/03/2023 Page: 11
2. Analysis
a. Legitimate Medical Purpose or Usual Course of Professional Practice
The jury was repeatedly instructed that it could convict Dr. Kahn if it concluded
that he acted outside the usual course of professional medical practice or without a
legitimate medical purpose. See, e.g., Aplt. App., Vol. I at 220–21 (instructions for Count
One), 224–25 (instructions for Count One), 232 (instructions for Count One), 236–37
(instructions for Counts Four, Six, Seven, Eleven, Fourteen, Sixteen, Nineteen, and
Twenty), 239 (instructions for Counts One, Four, Six, Seven, Eleven, Fourteen, Sixteen,
Nineteen, and Twenty), 264 (instructions for Count Twenty One). In review of the
instructions given, we previously concluded that “§ 841(a)(1) and § 1306.04(a) require
the government to prove that a practitioner-defendant either: (1) subjectively knew a
prescription was issued not for a legitimate medical purpose; or (2) issued a prescription
that was objectively not in the usual course of professional practice.” Kahn, 989 F.3d at
825 (emphasis added) (citing United States v. Nelson, 383 F.3d 1227, 1233 (10th Cir.
2004)). In partitioning § 1306.04(a), we treated the inquiry under the first “prong” as
wholly subjective, considering “why a defendant-practitioner subjectively issued that
prescription, regardless of whether other practitioners would have done the same,” and
we treated the inquiry under the second prong as wholly objective, considering “whether
a defendant-practitioner objectively acted within that scope, regardless of whether he
believed he was doing so.” Id. For two reasons, this analysis is incorrect under Ruan.
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First, Ruan expressly disallows conviction under § 841(a)(1) for behavior that is
only objectively unauthorized. The government must prove that a defendant “knowingly
or intentionally acted in an unauthorized manner.” Ruan, 142 S. Ct. at 2376.
Second, Ruan treats the two criteria in § 1306.04(a) not as distinct bases to support
a conviction, but as “reference to objective criteria” that may serve as circumstantial
evidence of a defendant’s subjective intent to act in an unauthorized manner. Id. at 2382;
see also id. at 2377 (“[T]he regulatory language defining an authorized prescription is . . .
ambiguous, written in generalit[ies], susceptible to more precise definition and open to
varying constructions.” (internal quotation marks and citations omitted)). Under
§ 841(a)(1), the government always has the burden of “proving that a defendant knew or
intended that his or her conduct was unauthorized.” Id. at 2382.4 Accordingly, the jury
instructions were erroneous because they allowed the jury to convict Dr. Kahn after
concluding either that Dr. Kahn subjectively knew a prescription was issued not for a
legitimate medical purpose, or that he issued a prescription that was objectively not in the
usual course of professional practice. Both approaches run counter to Ruan.
4 This court previously stated its concern that “[i]f a subjective standard applied to both prongs, a pharmacist who willingly ignored evidence that a prescription was invalid could escape liability, so long as he (even unreasonably) believed the prescription was filled for a legitimate medical purpose, and he acted within his own (unreasonable) scope of professional practice.” Kahn, 989 F.3d at 825. The Supreme Court, however, did not share this concern, and Ruan holds that an unreasonable pharmacist may not be convicted if he did not intend to act in an unauthorized way. Ruan, 142 S. Ct. at 2382. Of course, evidence of objective unreasonableness may support a jury’s ultimate finding that a defendant subjectively intended to act without authorization. Id. 12 Appellate Case: 19-8054 Document: 010110807970 Date Filed: 02/03/2023 Page: 13
b. Good Faith Instruction
The district court provided the jury with the following “good faith” instruction:
JURY INSTRUCTION NO. 39 . . . The good faith of Defendant Shakeel A. Kahn is a complete defense to the charges in Count One (conspiracy to commit a federal drug crime) as well as the charges in Counts Four, Six, Seven, Eleven, Fourteen, Sixteen, Nineteen, and Twenty (knowingly and unlawfully dispensing and/or distributing Oxycodone outside the usual course of professional practice and without a legitimate medical purpose), because good faith on the part of Defendant Shakeel Kahn would be inconsistent with knowingly and intentionally distributing and/or dispensing controlled substances outside the usual course of professional practice and without a legitimate medical purpose, which is an essential part of the charges. “Good faith” connotes an attempt to act in accordance with what a reasonable physician should believe to be proper medical practice . . . . The good faith defense requires the jury to determine whether Defendant Shakeel Kahn acted in an honest effort to prescribe for patients’ medical conditions in accordance with generally recognized and accepted standards of practice.
Aplt. App., Vol. I at 239. In light of Ruan, this good faith exception is also problematic.
The good faith exception’s reliance on terms like “reasonable physician” and
“should believe” impose an objective standard and are exactly the type of language that
the Supreme Court stated is impermissible. Ruan, 142 S. Ct. at 2381 (“The Government’s
[‘objectively reasonable good-faith effort’] standard would turn a defendant’s criminal
liability on the mental state of a hypothetical ‘reasonable’ doctor, not on the mental state
of the defendant himself or herself.”). Section 841(a) does not “use[] words such as ‘good
faith,’ ‘objectively,’ ‘reasonable,’ or ‘honest effort,’” and a district court cannot insert
them into the jury instructions. Id. Further, the instruction’s use of the word “attempt” is
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equally precarious. The question to be posed to a jury is whether a physician was
subjectively intending to act in a way that he believed was unauthorized—not whether he
was attempting to act in a way that a “reasonable physician should believe” was
authorized or unauthorized. See Aplt. App., Vol. I at 239. Again, “[t]he Government . . .
[must] prove knowledge of a lack of authorization.” Ruan, 142 S. Ct. at 2382.
3. Conclusion
To convict under the CSA, “the Government must prove beyond a reasonable
doubt that the defendant knowingly or intentionally acted in an unauthorized manner.” Id.
Here, the instructions provided to the jury improperly interjected a good faith exception
and effectively lowered the government’s burden to showing only that Dr. Kahn’s
behavior was objectively unauthorized—not that Dr. Kahn intended to act without
authorization. The government argued in Ruan that the Supreme Court “should read
[§ 841] as implicitly containing an ‘objectively reasonable good-faith effort’ or ‘objective
honest-effort standard,’” but the Supreme Court was “not convinced.” Id. at 2381. So our
analysis, likewise, must end there. The instructions given in Dr. Kahn’s trial do not
correctly state the mens rea requirement of § 841(a)(1), as articulated in Ruan.
C. The Invalid Jury Instructions Did Not Result in Harmless Error
Next, we must determine whether the errors in the jury instructions are harmless
beyond a reasonable doubt. Because the issue of Dr. Kahn’s intent was contested during
trial, and because the government has not established beyond a reasonable doubt that the
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jury determined that Dr. Kahn knowingly or intentionally acted not “as authorized,” we
conclude that the instructions provided to the jury did not result in harmless error.
The purpose of jury instructions is to give jurors the correct principles of law
applicable to the facts so that they can reach a correct conclusion as to each element of an
offense according to the law and the evidence. However, “[e]ven when the district court
fails to include an element of the crime in the instruction (including a mens rea element),
we . . . apply the harmless error rule, asking whether it appears beyond a reasonable
doubt that the error complained of did not contribute to the verdict obtained.” Little, 829
F.3d at 1183 (quoting United States v. Sorensen, 801 F.3d 1217, 1229 (10th Cir. 2015)).
The harmless error rule also applies where an instruction was given incorrectly. See, e.g.,
United States v. Benvie, 18 F.4th 665, 670 (10th Cir. 2021). When applying the harmless
error rule, “we must determine ‘whether the guilty verdict actually rendered in this trial
was surely unattributable to the [alleged] error,’” United States v. Mullikin, 758 F.3d
1209, 1211 (10th Cir. 2014) (quoting Sullivan v. Louisiana, 508 U.S. 275, 279 (1993))—
not “whether, in a trial that occurred without the error, a guilty verdict would surely have
been rendered,” Sullivan, 508 U.S. at 279. “That must be so, because to hypothesize a
guilty verdict that was never in fact rendered—no matter how inescapable the findings to
support that verdict might be—would violate the jury-trial guarantee.” Id.
“It is well-established that the burden of proving harmless error is on the
government.” United States v. Holly, 488 F.3d 1298, 1307 (10th Cir. 2007). Again, the
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general test for harmless error requires that the government prove “beyond a reasonable
doubt that the error complained of did not contribute to the verdict obtained.” United
States v. Luke-Sanchez, 483 F.3d 703, 705 (10th Cir. 2007) (citing Neder, 527 U.S. at 15)
(applying this test to “[a] jury instruction that improperly describe[d] an element of the
charged crime”); see also Neder, 527 U.S. at 11 (extending harmless error analysis to
instructions that omit an element; “[o]mitting an element can easily be analogized to
improperly instructing the jury on the element, an error that is subject to harmless-error
analysis.”). In the context of jury instructions that omit—rather than misstate—an
element, we have sometimes invoked a passage of Neder that imposes additional
requirements. Under that test, the government must prove “beyond a reasonable doubt
that the omitted element was uncontested and supported by overwhelming evidence, such
that the jury verdict would have been the same absent the error.” Neder, 527 U.S. at 11.
We have previously declined to “parse out the proper formulation of the harmless-error
standard for direct review under Neder,” United States v. Schneider, 665 F. App’x 668,
672 (10th Cir. 2016),5 and we may continue to avoid doing so here. Under either iteration
5 “Defendants contend the applicable standard for determining harmless error when, as here, the jury was not instructed on an element of the offense is whether the ‘reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error.’ Neder, 527 U.S. at 17. In reviewing such instructional error for harmlessness on direct appeal from a conviction, we have sometimes invoked this standard verbatim. We have on other occasions invoked another passage from Neder that does not refer to whether the omitted element was uncontested or supported by overwhelming evidence, but simply asks more generally ‘whether it 16 Appellate Case: 19-8054 Document: 010110807970 Date Filed: 02/03/2023 Page: 17
of the test for harmless error, the government has not shown beyond a reasonable doubt
that the instructional error was harmless.
During his testimony at trial, Dr. Kahn did not contest the fact that he wrote the
relevant prescriptions, nor did he contest that the testifying patients were abusing or
selling their medications. The central issue put to the jury in Dr. Kahn’s trial was his
intent in issuing the charged prescriptions. We start with Neder’s test for reviewing
instructions that omit an element, moving then to the general harmless error test. We
conclude that, under both tests, the government has not met its burden in showing that the
erroneous jury instructions played no part in the jury’s verdict.
a. The Mens Rea Element Was Not Uncontested and Supported by Overwhelming Evidence, Such That the Jury Verdict Would Have Been the Same Absent the Error
Under the more specific test articulated in Neder for reviewing instructions which
omitted elements, the government must prove “beyond a reasonable doubt that the
omitted element was uncontested and supported by overwhelming evidence, such that the
jury verdict would have been the same absent the error.” 527 U.S. at 11. Here, the
government is correct that the Supreme Court has acknowledged that “the scope of a
doctor’s prescribing authority” remains tethered “to objective criteria such as ‘legitimate
appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Schneider, 665 F. App’x at 672 (internal citations omitted).
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medical purpose’ and ‘usual course’ of ‘professional practice.’” Ruan, 142 S. Ct. at 2382.
A physician’s serial disregard of accepted medical norms constitutes relevant evidence of
his mental state, and “the more unreasonable a defendant’s asserted beliefs or
misunderstandings are, especially as measured against objective criteria, the more likely
the jury . . . will find that the Government has carried its burden of proving knowledge.”
Id. (internal quotation marks and citations omitted). But, while the government may point
to voluminous trial testimony and numerous exhibits meant to prove (through
circumstantial evidence) that Dr. Kahn knowingly or intentionally acted in an
unauthorized manner, we cannot reach this conclusion.
This is not a case in which the element of the crime that was impacted6 by the
invalid jury instruction was “uncontested and supported by overwhelming evidence,” and
where “the defendant ‘did not contest the element . . . at trial,’ and did not ‘suggest that
he would introduce any evidence bearing upon the issue . . . if so allowed.’” United States
v. Ellis, 868 F.3d 1155, 1172 (10th Cir. 2017) (quoting Neder, 527 U.S. at 15, 17). Where
an element of an offense is contested at trial, as it was here, the Constitution requires that
the issue be put before a jury—not an appellate court. See Neder, 527 U.S. at 18–19
(discussing the Sixth Amendment’s jury guarantee; “[i]n a case . . . where a defendant did
not, and apparently could not, bring forth facts contesting the omitted element, answering
6 We need not decide whether the mens rea element was omitted or rather misstated in the jury instructions. Regardless of the label one could apply, the instructional requirements of Ruan are not satisfied. 18 Appellate Case: 19-8054 Document: 010110807970 Date Filed: 02/03/2023 Page: 19
the question whether the jury verdict would have been the same absent the error does not
fundamentally undermine the purposes of the jury trial guarantee”). In this case,
Dr. Kahn’s intent was in dispute throughout his trial and was the centerpiece of his
defense. A jury, properly instructed, must address whether the government carried its
burden to establish Dr. Kahn’s intent beyond a reasonable doubt.
For this court to now essentially retry the case on appeal and opine on what verdict
the jury would have reached if it had been properly instructed asks too much of an
appellate court. This is particularly true here, where we would be determining Dr. Kahn’s
subjective intent on a cold record. This court will not wade into the evidence to now
apply the correct instructions—that is the jury’s prerogative.
b. The Guilty Verdict Actually Rendered in Dr. Kahn’s Trial Was Not Surely Unattributable to the Alleged Instructional Error
The more general harmless error question is whether, given what the jury
necessarily did find based on the instructions it was provided, “the guilty verdict actually
rendered in this trial was surely unattributable to the [alleged] error.” Mullikin, 758 F.3d
at 1211 (quoting Sullivan, 508 U.S. at 279). Here, we cannot say with certainty that the
erroneous instructions, which effectively reduced the government’s burden of proof, did
not contribute to the verdict.
As we stated in our prior opinion, the jury instructions given in Dr. Kahn’s trial
meant that the jury “could only convict Dr. Kahn if it found, beyond a reasonable doubt,
that Dr. Kahn failed to even attempt or make some honest effort to apply the appropriate
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standard of care.” Kahn, 989 F.3d at 826. The instructions provided in Dr. Kahn’s trial
did not require the jury to decide whether Dr. Kahn knowingly or intentionally acted
without authorization.
While proof that Dr. Kahn failed to try to conform his prescribing practices to the
standards of his profession may “go far to show, circumstantially at least, that [Dr. Kahn]
actually knew he was acting outside the standards of his profession,” Aple. Supp. Br. at 6,
that evidence does not fully satisfy the requirement that the government prove that
Dr. Kahn “knowingly or intentionally acted in an unauthorized manner,” Ruan, 142 S. Ct.
at 2376. It is not enough that the jury found that Dr. Kahn failed to attempt or make some
honest effort to apply the appropriate standard of care, nor is it enough that the jury
accepted that Dr. Kahn subjectively knew a prescription was issued not for a legitimate
medical purpose, and/or issued a prescription that was objectively not in the usual course
of professional practice.
To allow conviction where the government proved only that Dr. Kahn failed to
attempt or make some honest effort to apply the appropriate standard of care does not
require any finding by the jury that Dr. Kahn intended to act not “as authorized.” The
government must show that the jury necessarily made a finding that Dr. Kahn knowingly
or intentionally acted not “as authorized.” As it stands, the jury in Dr. Kahn’s case was
provided incorrect instructions, and that error went directly to the heart of the trial:
Dr. Kahn’s intent. The instructions allowed conviction if the jury concluded “that
Dr. Kahn failed to even attempt or make some honest effort to apply the appropriate
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standard of care.” Kahn, 989 F.3d at 826. Based on the jury instructions, as they were
written and presented to the jury, the jury was not required to find that Dr. Kahn intended
to or knowingly did act not “as authorized.” The jury did not make the required mens rea
finding, and “to hypothesize a guilty verdict that was never in fact rendered—no matter
how inescapable the findings to support that verdict might be—would violate the jury-
trial guarantee.” Sullivan, 508 U.S. at 279.
We cannot conclude beyond a reasonable doubt that the mens rea element, “was
uncontested and supported by overwhelming evidence, such that the jury verdict would
have been the same absent the error.” Neder, 527 U.S. at 17 (emphasis added). Nor can
we conclude that the jury’s verdict was unattributable to the erroneous instruction. The
government may be able to present circumstantial evidence that Dr. Kahn knowingly or
intentionally acted in an unauthorized manner (indeed, the government has attempted to
do so on remand to this court), but this court should not assume the responsibility of
making a finding on a contested issue of fact. Connecticut v. Johnson, 460 U.S. 73, 85–
86 (1983) (“If the jury may have failed to consider evidence of intent, a reviewing court
cannot hold that the error did not contribute to the verdict. The fact that the reviewing
court may view the evidence of intent as overwhelming is then simply irrelevant.”); see
also United States v. Twitty, 641 F. App’x 801, 805 (10th Cir. 2016) (“Appellate judges
are poorly equipped to evaluate states of mind based on a cold record. The issue of . . .
subjective intent is one best left to the determination of a properly instructed jury.”
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(internal quotation marks and citations omitted)). We cannot act as a “second jury.”
Neder, 527 U.S. at 19 (citation omitted). We conclude that the erroneous jury instructions
issued in Dr. Kahn’s trial did not result in harmless error.
D. Dr. Kahn’s Remaining Convictions
Finally, we discuss which of the counts of conviction, specifically, were affected
by erroneous instructions. We determine that each of Dr. Kahn’s convictions was
impacted by erroneous instructions in a way that prejudiced him, and, therefore, we
remand with directions to vacate his convictions on all counts.
The jury instructions pertaining 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), as charged
in Counts Four, Six, Seven, Eleven, Fourteen, Sixteen, Nineteen, and Twenty all contain
the following language:
To Prove [Dr. Kahn] is guilty of [these counts], the Government must prove beyond a reasonable doubt [that] . . . [Dr. Kahn] knowingly or intentionally distributed or dispensed the controlled substance outside the usual course of professional medical practice or without a legitimate medical purpose.
Aplt. App., Vol. I at 237. The instructions as to these counts and, in addition, Count One,
which charges conspiracy to dispense and distribute controlled substances resulting in
death, in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(C), and (b)(2), also include the
good faith exception. Id. at 239–40. Accordingly, as discussed above, the instructions as
to Counts One, Four, Six, Seven, Eleven, Fourteen, Sixteen, Nineteen, and Twenty are
erroneous and did not result in harmless error.
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As for the remaining counts, the instructions predicate conviction on the jury’s
finding of guilt in the erroneously-instructed Counts One, Four, Six, Seven, Eleven,
Fourteen, Sixteen, Nineteen, and Twenty. For example, the instructions for Counts Five,
Nine, and Ten, which charge Dr. Kahn with aiding and abetting his codefendant in
furtherance of § 841(a)(1) crimes, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C)
and 18 U.S.C. § 2, state, “[t]his means the government must prove that [Dr. Kahn] shared
[his codefendant’s] knowledge of the underlying [§ 841(a)(1)] criminal act and intended
to help him.” Id. at 258. The instructions for Counts Eight, Twelve, Thirteen, Seventeen,
and Eighteen charge Dr. Kahn with use of a communication facility in furtherance of the
crimes charged in Counts One, Seven, and Eleven, in violation of 21 U.S.C. § 843(b). Id.
at 253–55. Count Two charges Dr. Kahn with possession of a firearm, again, “in
furtherance of a federal drug trafficking crime,” in violation of 18 U.S.C. § 924(c)(1), and
the instructions indicate that conviction rested on whether the jury concluded that Dr.
Kahn possessed a firearm in furtherance of Count One. Id. at 242–43. The instructions for
Count Twenty One charge Dr. Kahn with “continuing criminal enterprise,” in violation of
21 U.S.C. § 848(a), (b), and (c), which the instructions define as the continuation of the
illegal drug activities detailed in Counts One through Twenty. Id. at 262. Finally, the
instructions for Counts Twenty Two and Twenty Three charge Dr. Kahn with engaging in
monetary transactions derived from specified unlawful activity (money laundering), in
violation of 18 U.S.C. § 1957—the “unlawful activity” at issue is, again, tied back to the
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conduct charged in Counts One, Four through Seven, Nine through Eleven, Fourteen,
Sixteen, Nineteen, and Twenty. Id. at 271–73.
For each § 841(a)(1) charge on which Dr. Kahn was convicted, the instructions
erroneously articulated the mens rea requirement in light of Ruan. As regards the
remaining charges, the instructions pertaining to those charges are likewise predicated, at
least in part, on one or more of the erroneous § 841(a)(1) instructions. Accordingly, we
conclude that Dr. Kahn’s convictions as to each count must be vacated.
III. CONCLUSION
The jury instructions issued in Dr. Kahn’s trial incorrectly instructed the jury
regarding the mens rea requirement of § 841(a), and this same error infected the
instructions given on all counts. The government has not shown beyond a reasonable
doubt that the erroneous jury instructions resulted in harmless error. Accordingly, we
VACATE Dr. Kahn’s convictions and REMAND for new trial.